Virginia Board of Medicine Prioritizes Patient Access to Services in New Telemedicine Guidance Document

In the midst of the COVID-19 pandemic, businesses had to find new, evolving ways to continue to provide goods and services safely to their clients and patients. Health care providers were no exception; however, emergency federal and state telemedicine waivers allowed many health care providers to provide needed health care services to clients and patients in a safe, effective, and socially distanced manner. As the pandemic continues to wane, many of these state and federal waivers will lapse, returning telemedicine to its pre-COVID-19 pandemic state of regulation.

In recognition of the positive impact telemedicine had on the ability of health care providers to continue to serve clients and patients during the pandemic, the Virginia Board of Medicine recently published a new Guidance Document, effective August 19, 2021, concerning providing health care services to patients via telemedicine. The Guidance Document is not intended to alter the scope of practice of any provider or authorize delivery of health care services in a setting or manner not otherwise authorized by law. Instead, it is intended to “educate licensees as to the appropriate use of telemedicine services in the practice of medicine.” This client advisory covers the key provisions of this Guidance Document.

Practitioner-Patient Relationship

Whenever a practitioner uses telemedicine in the provision of services, the practitioner must establish an appropriate and compliant practitioner-patient relationship. If the practitioner is prescribing the patient controlled substances, a bona fide practitioner-patient relationship, as set forth by Va. Code § 54.1-3303.B., must exist. All laws, regulations, and standards of practice applicable to in-person prescriptions, such as the requirements set forth in Va. Code §§ 38.2-3418.16 and 54.1-3408.01, apply to the prescription of controlled substances via telemedicine. Prescriptions issued via telemedicine should also contain direct contact information for the prescriber or the prescriber’s agent. If the practitioner is providing services to a patient located outside of Virginia, then the laws of that jurisdiction apply as well. These requirements mean that utilization of telemedicine services will not be appropriate for all situations. The practitioner providing services is responsible for ensuring that, if the practitioner uses telemedicine services, telemedicine is appropriate for the service provided.

Guidelines on Use of Telemedicine

The practice of medicine occurs where the patient receiving services is located; however, insurers will often issue reimbursement based on the location from which the practitioner is providing the service. Therefore, the practitioner must ensure compliance with individual licensure and ability to provide services in the jurisdiction in which the practitioner is located and the patient is located. Practitioners should ensure that all insurance claims submitted comply with federal and state laws and the contract the provider has with the insurer.[1]

The practitioner must conduct and document a medical evaluation and collect relevant history and clinical information about the patient to establish diagnoses and identify underlying conditions or contra-indications before providing treatment. For treatment and consultation recommendations, including the issuance of a prescription, telemedicine will be held to the same standard as in-person encounters. Issuing a prescription based solely on an online questionnaire does not comport with the standard of care and will put the practitioner at risk of disciplinary action.

In accordance with the new Guidance Document, the practitioner must obtain informed consent for telemedicine services from the patient. This informed consent should include, at a minimum:

• Identification of the patient, practitioner, and practitioner’s credentials;
• Activities the patient permits using telemedicine;
• Agreement by the patient that it is up to the practitioner to determine if telemedicine is appropriate for the condition being diagnosed and/or treated;
• Details on telemedicine security measures utilized;
• Hold harmless clause for information lost due to technical failure; and
• Requirement for express patient consent to forward patient-identifiable information to a third party.

Further, the practitioner needs to ensure this consent is documented in the patient’s medical record. The patient’s medical record of telemedicine services must be accessible to both the patient and the practitioner and be consistent with all other laws and regulations governing patient medical records. The practitioner must put written policies and procedures in place for documentation, maintenance, and transmission of records documenting telemedicine encounters. These policies should address information privacy, health care personnel who will process messages, hours of operation, transactions permitted to be performed electronically, required patient information to be included in communications, archival and retrieval of records, and quality oversight mechanisms. Practitioners should review such policies and procedures periodically and maintain the policies in an accessible and available format.

Electronic Medical Services That Do Not Require Licensure

The Guidance Document highlights two key exceptions that pertain to the performance of medical services in Virginia that do not require a valid Virginia license. The first is the “consultant exemption” in Va. Code § 54.1-2901(A)(15) that does not prohibit “[a]ny legally qualified out of state or foreign practitioner from meeting in consultation with legally licensed practitioners in [Virginia].” This exemption allows a Virginia practitioner caring for a patient to consult with a practitioner licensed in another state who has specialized knowledge that will benefit the care of the patient. For the exemption to apply, the Virginia practitioner must be in regular communication with the consultant while the consultation and care is provided.

The second exemption concerns those services which do not meet the definition of “telemedicine” in the Code of Virginia. Va. Code § 38.2-3418.16 defines “telemedicine” as:

the use of electronic technology or media, including interactive audio or video, for the purpose of diagnosing or treating a patient, providing remote patient monitoring services, or consulting with other health care providers regarding a patient’s diagnosis or treatment, regardless of the originating site and whether the patient is accompanied by a health care provider at the time such services are provided.

This definition does not include audio-only telephone, e-mail, fax, or an on-line questionnaire. The Board believes that such communications do not constitute telemedicine and do not require licensure when used in the follow-up care of a Virginia resident with which the practitioner has already established a bona-fide practitioner-patient relationship. The establishment of a new bona-fide practitioner-patient relationship with a person receiving services in Virginia requires a valid Virginia license and is subject to the requirements discussed above.

Conclusion

Expansion of the utilization of telemedicine services is the future of health care. During the COVID-19 pandemic, many practitioners, who may have had little to no experience with telemedicine, were forced to adapt to an environment where telemedicine constituted a large portion of their practice overnight. Now many of those same practitioners cannot envision their practice without telemedicine. This Guidance Document was the Virginia Board of Medicine’s first foray into telemedicine practice guidelines in a post-COVID-19 pandemic world. The Virginia Board of Medicine and state and federal legislatures will likely continue to realize that telemedicine will be a key component of the provision of health care going forward and continue to mold laws, regulations, and practice standards accordingly.

Should you or your facility have any questions about any of this guidance, please contact Peter Mellette, Harrison Gibbs, or Elizabeth Dahl Coleman at Mellette PC.

This client advisory is for general educational purposes. It is not intended to provide legal advice specific to any situation you may have. Individuals desiring legal advice should consult legal counsel for up-to-date and fact-specific advice.

[1] Note that pandemic waivers and other payer policies may apply. https://mellettepc.com/client-advisory/2020/03/17/cms-temporarily-expands-access-to-telehealth-services-by-medicare-beneficiaries-in-response-to-the-covid-19-public-health-emergency/, https://mellettepc.com/client-advisory/2020/03/24/department-of-health-professions-issues-temporary-waivers-to-certain-board-of-nursing-licensure-requirements-in-response-to-state-of-emergency/, https://mellettepc.com/client-advisory/2020/04/27/governor-announces-licensing-flexibilities-for-health-care-professionals-in-response-to-novel-coronavirus-covid-19/.